On August 19th, Senators Michael B. Enzi and John Barraso, M.D., as well as U.S. Representative Cynthia M. Lummis, wrote to the Secretary of the Interior, The Honorable Sally Jewell, requesting that the Department of the Interior exempt Wyoming, as well as other states currently regulating hydraulic fracturing, from the Bureau of Land Management’s (BLM) final rule concerning Oil and Gas: Hydraulic Fracturing on Federal and Indian Lands.

As background, BLM had previously published a proposed rule applying to Hydraulic Fracturing in the Federal Register dated Friday, May 24, 2013 (for more information regarding this rule, please click here). The proposed rule purports:

[T]o modernize BLM’s management of hydraulic fracturing operations by ensuring that hydraulic fracturing operations conducted on the public mineral estate . . . follow certain best practices, including: (1) The public disclosure of chemicals used in hydraulic fracturing operations on Federal and Indian lands; (2) Confirmation that wells used in fracturing operations meet appropriate construction standards; and (3) A requirement that operators put appropriate plans in place for managing flowback waters from fracturing operations.

78 Fed. Reg. 31,636 (May 24, 2013). Arguing that the rule duplicates already-existing state regulations which “address well-bore integrity and flowback water and require disclosure of hydraulic fracturing constituents,” the lawmakers asserted that the provisions of the proposed rule, if implemented, would discourage oil and gas production on public lands by significantly delaying permitting and by adding to the heavy regulatory burden states like Wyoming already shoulder in managing public lands and minerals within their borders. By way of example, the lawmakers noted that complying with both state and federal law tended to delay investment and job creation and even push those who may have otherwise sought access to public lands into private spaces and states with greater regulatory certainty.

Moreover, the lawmakers questioned whether a final rule applying to hydraulic fracturing would provide “meaningful benefits not already provided by public land states.” Wyoming and states like it already enforce hydraulic fracturing regulations which apply to private and state lands. If not already applicable, these state regulations could be expanded to apply to Federal public lands within the borders of public lands states.

Irrespective of whether hydraulic fracturing is to occur on public or private land, however, the lawmakers concluded that states, not the Federal government, are “best positioned” to regulate such activity. In fact, Rep. Lummis has co-sponsored (i) a bill that recognizes states’ authority to regulate oil and gas operations and (ii) a bill that clarifies states have sole authority to regulate hydraulic fracturing on Federal lands within their boundaries. For more information concerning these bills, please click here and here, respectively.

In light of the foregoing, the lawmakers closed their letter by requesting that the Secretary exempt Wyoming and other public land states from final regulations concerning hydraulic fracturing. Whether she will do so, however, remains to be seen.

Additional coverage of this issue can be found here:

Wyoming Star Tribune: Wyoming delegation: Exempt state from fracking rules

Senator Enzi: Delegation Calls for State Exemption from BLM’s Fracking Rule

The Hill: GOP lawmakers press for exemption from proposed fracking rule